jurist; but if either feels that there are legal principles which the sovereign cannot modify and which historical development merely exhibits, he is really a disciple of the natural-law school. Similarly, many laymen, who know nothing of the wranglings of the philosophical schools, are instinctively adherents of the school of natural law, although they might be as much surprised to hear this as was Molière's M. Jourdain when he discovered that he had unwittingly talked prose all his life.

Between such persons, and those who believe that law is a social instrument which men deliberately fashion to serve their purposes, or those who believe that it is a product of the entire social life and must needs change with changing social conditions, discussion is difficult.

It may be an irenic suggestion to say that each of these philosophical theories has in it a core of truth, but that, as none is wholly false, so none embodies the whole truth. There are conditions of social life and progress which are so essential that no legal system can disregard them, without imperiling the welfare and possibly the existence of the society which it governs. These conditions may be described as determined by nature. As far as they fit into the framework of law and are capable of statement as legal principles, they are appropriately described as natural law. Again: the coöperation on which human society is based is not mechanical, like that of the ant-hill; it is a coöperation of free individuals whose personality is not wholly merged in any group and whose interests are indeed subordinated but not sacrificed to group interests. The human type of coöperation is one that leaves room for competition; and social progress is largely the result of limited competition. The protection of human personality and of individual interests, the staking-off of fields of free competition-these are necessary conditions of social life among men, and they find expression in the so-called natural rights of the human being. On the other hand, the precise adjustment of social and individual interests is not, as far as we can see, determined by nature. It is determined in large measure by the historical development of societies; it changes, and apparently must change, as social conditions are modified. It is also determined, to a considerable degree, by

the human will. And when the conditions of social life and progress and the adjustment of social and individual interests. are to be expressed in written laws and constitutions, the human will has complete freedom. The content of legal rules may be determined by nature or by history; their form is determined by human authority. It may then be conceded that, in a very real sense, there is natural law and there are natural rights. does not follow, however, that any statement of this law or any formulation of these rights can be eternally valid. All such statements and formulations require continuous evolutive interpretation; and from time to time there will be need of restatements and reformulations.

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DISCUSSION OF THE ADAPTATION OF WRITTEN CONSTITUTIONS TO CHANGING ECONOMIC AND SOCIAL CONDITIONS1

A

HENRY ROGERS SEAGER

Professor of Political Economy, Columbia University

S an advocate of labor laws, some of which have been held unconstitutional, I might be expected to dissent from Professor Goodnow's conclusions. Instead, my experience and observation, not, of course, as a constitutional lawyer, but merely as a student of labor legislation, cause me to agree with every important position he has taken. I believe, as he does, that judicial interpretation can and will adapt our federal constitution to our changing economic and social conditions. There is nothing in that instrument, as he has shown, which expressly bars the way to a thorough-going program of social and labor legislation. Where the way has been barred by decisions of the Supreme Court, as in the reactionary decision holding the ten-hour bake-shop law of this state unconstitutional, the cause has clearly been not in the constitution, but in the personal opinions and prejudices of the judges called on to interpret the constitution. To prove this contention it is necessary only to recall that in the case referred to four out of the nine judges, quite as able and learned-in-thelaw as their colleagues, took an exactly opposite view of the meaning of the constitution. Moreover, it was a reflection on the intelligence of the American people to ask them to believe that their fundamental law, which had been held a few years before to permit the state of Utah to prohibit the employment of men in underground mines and smelters for more than eight hours a day, would not permit the state of New York to prohibit their employment in bakeries for more than ten hours a day. In all decisions involving the scope of the police power,

At the meeting of the Academy of Political Science, October 26, 1912.

that is, the question as to how far the liberty of the individual may be curbed to promote the larger social interests of the community, we are clearly in the domain of fallible and changing opinion. Judicial opinion is only one segment-a conservative segment, no doubt-of general public opinion. As public opinion is aroused to industrial evils and voices itself in legislation regulating labor and other social conditions, judicial opinion will respond. In only a few instances, and then by bare-majority decisions certain to be subsequently reversed, has the Supreme Court of the United States refused to uphold measures consonant with the prevailing morality and the generally accepted opinion of the day.

While I agree with Professor Goodnow's conclusions, I should emphasize even more strongly than he has done the importance of the changes in our legal system which are necessary to make the process of adaptation by judicial interpretation work freely and easily. With the fourteenth amendment to the federal constitution given the broad scope which it now has, I should like to see the bills of rights amended out of the state constitutions all together. Private rights do not require the double constitutional protection which they now enjoy. The only important result of it is that labor and other laws which have good prospect of being upheld by the federal Supreme Court are often declared unconstitutional by the less able and less progressive state courts of last resort. If this proposal seems to go too far, certainly there can be no valid objection to making the machinery for amending a state constitution so simple and so ready in its operation that measures like the workmen's compensation act which was held unconstitutional by our court of appeals and which have public opinion overwhelmingly behind them, can be within a reasonable period expressly authorized by constitutional amendment.

The necessary corollary to machinery for the easy amendment of state constitutions is the other measure of which Professor Goodnow spoke, a federal statute permitting appeal to the federal courts whenever the interpretation of the constitution of the United States is the issue on which a decision turns. That appeal may be taken from decisions upholding

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statutes and not from decisions declaring statutes unconstitutional is an anomaly in our present system which history may explain but which logic can not defend.

With state constitutions that may be easily amended and the right to appeal to the federal Supreme Court whenever there is a question as to what the federal constitution permits or does not permit, I believe we should be able to enjoy all of the advantages which come from written constitutions and at the same time largely escape the disadvantages, of which we have been made so conscious in the last few years.

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